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Judicial Discipline Case of the Week: Judge gets no “professional courtesy” for DUI

Posted by judicialethicsforum on Sunday, January, 9, 2011

The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position. The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship. The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.” (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).) Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.

In addition to the “professional courtesy” bit, the case is interesting in two further ways. First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing. That is indeed a controversial inference, but the New York Court of Appeals has blessed it. See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985). The second interesting feature of the case is the point of the two-member dissent. As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option). All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh. For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal).